Citation NR: 9702351
Decision Date: 01/27/97 Archive Date: 02/07/97
DOCKET NO. 94-47 759 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for a
post-surgical right knee disability with osteoarthritis,
prior to November 10, 1994.
2. Entitlement to an increased evaluation for status post
right knee surgery with osteoarthritis and right knee
replacement, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. McGovern, Associate Counsel
INTRODUCTION
The veteran had active service from November 1942 to February
1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from rating decisions of the Huntington,
West Virginia Department of Veterans Affairs (VA) Regional
Office (RO), which denied an increased rating for a right
knee disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his right knee disorder is more
disabling than the current 30 percent evaluation and prior 10
percent evaluation reflect and that, therefore, an increased
rating is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence favors an
increased rating for the right knee disability prior to
November 10, 1994 and that the preponderance of the evidence
is against the claim for an increased rating for status post
right knee surgery with osteoarthritis and right knee
replacement, currently assigned a 30 percent rating.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the issues on appeal has been obtained.
2. Prior to right knee replacement surgery in November 1994,
the veteran’s right knee disability was manifested by pain,
swelling, effusion, limitation of motion, and severe
arthritic changes by X-ray.
3. The veteran’s right knee disorder is currently manifested
by complaints of pain on standing for long periods and
walking long distances, a mild limp, painless right knee
flexion and extension from 0 to 80 degrees, and tenderness
over the femoral jointline on the right. There is no
weakness or instability of the knee shown.
CONCLUSIONS OF LAW
1. Prior to November 10, 1994, the criteria for a 30 percent
rating for the right knee disability were approximated.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7,
4.20. 4.71a, Diagnostic Code 5010-5257 (1995).
2. The criteria for an evaluation in excess of the current
30 percent rating for status post right knee surgery with
osteoarthritis and right knee replacement are not met.
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic
Codes 5010, 5055, 5256, 5261, 5262 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran’s claim in regard to his service-connected right
knee disability is well grounded within the meaning of
38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible
claim which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). In general an allegation of an increased disability
is sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet.App. 629
(1992). The veteran has not asserted that any records of
probative value which are not already associated with his
claims folder are available. The Board is satisfied that all
relevant facts have been properly developed and that no
further assistance to the veteran is required in order to
comply with the duty to assist him as mandated by 38 U.S.C.A.
§ 5107.
Facts
The veteran’s service medical records reveal that the veteran
sustained a right knee injury prior to service. In February
1943, the veteran fell and injured his knee on an obstacle
course and, in October 1944, the veteran sustained an
incomplete dislocation, articular cartilage, of the right
knee.
Post-service medical records reveal that the veteran
underwent an arthrotomy, meniscectomy, and synovectomy of the
right knee in January 1957.
By rating decision dated in November 1988, the RO found that
the veteran’s right knee condition had been aggravated in
service and granted service connection for status post right
knee surgery with osteoarthritis, evaluated as 10 percent
disabling from August 1988.
In August 1989, the veteran sought treatment at a VA
outpatient treatment facility and one of his complaints was
that his knee was swollen. The relevant assessment was
degenerative arthritis.
In September 1990, the veteran sought treatment complaining
of arthritis in his knees. The veteran stated that Easprin
was not helping much. The examiner noted that the right knee
was warm to the touch without tenderness and the pertinent
assessment was degenerative arthritis.
In May 1991, the veteran sought treatment for his arthritis.
He reported that the medication was not helping as much as it
previously had and he requested a consultation with his
physician.
In September 1991, the veteran sought treatment for arthritis
pain and the examiner noted that the veteran had a lot of
pain in his knees.
In January 1992, the veteran was seen at a VA outpatient
facility and he reported that his right knee had become more
painful. The examiner noted that the veteran’s right knee
was warm to the touch with no tenderness or edema. The
relevant assessment was degenerative arthritis.
In April 1992, the veteran was seen at a VA facility and he
reported that his right knee still ached at times. The
examiner noted that the veteran had arthritis in his right
knee.
The veteran again sought treatment in August 1992 and he
reported that his arthritis was bad and that nothing relieved
it. The relevant assessment was degenerative arthritis.
In October 1993, the veteran was treated at a VA outpatient
clinic and he reported that the arthritis in his right knee
had become more painful.
In March 1994 the veteran sought VA treatment, complaining of
right knee pain. The examiner noted that the right knee had
effusion along the tibial elation and that cartilage
fragments palpated at the posterior lateral aspect. The
assessment was service-connected right knee post arthritic
joint effusion, cartilaginous tear. The impression of X-rays
of the right knee was degenerative changes of the right knee
with joint effusion of the right knee.
In April 1994, the veteran sought VA treatment for right knee
pain and complained that he had pain on both sides of the
knee. The veteran reported that his medications were not
very helpful. The examiner noted that the veteran had a
history of surgery on the right knee and that there was a
scar on the medial aspect of the right knee. The examiner
noted that March 1994 X-rays of the right knee revealed
traumatic osteoarthritis with effusion. On examination, the
joint was puffy with probable effusion and the veteran had
mild tenderness on both sides of the knee. The examiner also
noted that flexion of the right knee was limited. The
assessment was traumatic osteoarthritis of the right knee.
The veteran again sought VA treatment for right knee pain in
May 1994. He complained of right knee pain which had
worsened one year earlier. He stated that climbing stairs
caused right knee pain and that his pain medications did not
work. The examiner noted that the veteran had osteoarthritis
of the right knee. The examiner reported that the right knee
was somewhat puffy with mild tenderness on both sides of the
joint. The assessment was osteoarthritis, might need bone
replacement; not much more to offer medically; advised to
avoid walking on stairs. The veteran was supplied with a
walking cane to be used as needed.
At the June 1994 VA examination, the veteran reported that he
had had continued right knee pain, stiffness, and instability
since his 1954 right knee surgery. Examination revealed that
the veteran ambulated with a limp favoring his right leg and
that he used a cane. There was a well-healed scar over the
medial aspect of the right knee. The veteran could walk on
his heels; however, he was unable to walk on his toes. The
examiner noted that there was moderate enlargement of the
right knee and that there was tenderness over the femoral and
tibial joint lines of the right knee. Flexion and extension
of the right knee were from 0 to 80 degrees. There was no
anterior, posterior, or lateral laxity of the right knee and
there was no effusion evident in the right knee. The
examiner noted that March 1994 X-rays showed degenerative
changes of the right knee with joint effusion. The diagnosis
was status-post surgery of the right knee with osteoarthritis
of the right knee joint.
In July 1994, the veteran was treated at a VA outpatient
facility and the examiner noted that the veteran’s right knee
was tender and swollen with no redness. The relevant
assessment was post traumatic arthritis. The veteran was
referred for an orthopedic consultation which was conducted
on the same day. The orthopedic examiner noted that the
veteran had had surgery on his knee in 1954 due to persistent
giving away and catching of the knee. The examiner noted
that the veteran now had generalized pain around the right
knee even at rest, that the pain got worse with weight
bearing, that the veteran used a cane, and that he took a
variety of medicines. The examiner noted that the right knee
swelled, that there was a feeling of insecurity in the right
knee, and that there was no locking. The veteran reported
that he could walk three-quarters to one mile. Range of
motion testing revealed flexion of the right knee from 10 to
90 degrees, with pain. The examiner reported that the knee
joint was stable and that there was a small effusion, a
healed incision, and arthritic deformity. The examiner
noted that March 1994 X-rays of the right knee revealed
severe tri-compartment arthritis of the right knee. The
veteran indicated that he was interested in surgical
treatment and the examiner referred him to an orthopedic
surgeon for total knee replacement The impression was severe
degenerative joint disease, right knee.
In November 1994 the veteran underwent total right knee
replacement surgery. The operation report reflects that the
indications for surgery were severe degenerative
osteoarthritis of the right knee, inability to walk any
distance, and constant rest pain.
By rating decision dated in February 1995, the RO granted a
100 percent evaluation for status post right knee surgery
with osteoarthritis and knee replacement from November 10,
1994 to January 1, 1995, pursuant to 38 C.F.R. § 4.30 (1995),
and a 100 percent schedular rating from January 1, 1995, to
January 1, 1996. A 30 percent rating was assigned from
January 1996.
At a February 1996 VA examination, the examiner noted that
the veteran had had a total right knee arthroplasty in
November of 1994 and that he still had some pain in his right
knee, especially after standing for about one and a half
hours or after walking one mile. Examination revealed that
the veteran had a mild limp which favored his right leg. The
examiner noted that the veteran did not use prosthesis to aid
in ambulation and that heel-toe walking was normal. The
examiner reported that the veteran had painless flexion and
extension of the right knee from 0 to 80 degrees. There was
no anterior, posterior, or lateral laxity of the right knee.
Both calves and thighs were equal in circumference. There
was tenderness over the femoral jointline on the right and
there were well healed scars on the anterior and medial
aspects of the right knee. The examiner noted that X-rays
showed that the veteran was status post right knee
replacement and that the prosthesis was in good alignment and
position with no evidence of loosening. The diagnosis was
residuals of trauma to the right knee with total right knee
arthroplasty.
Analysis
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1995). Separate
diagnostic codes identify the various disabilities. In
determining the disability evaluation, the VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589
(1991). These regulations include 38 C.F.R. §§ 4.1, 4.2
(1995), which require the evaluation of the complete medical
history of the claimant’s condition. These regulations
operate to protect claimants against adverse decisions based
on a single, incomplete, or inaccurate report, and to enable
the VA to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath, 1
Vet.App. at 593-94.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, See 38 C.F.R. §§ 4.2, 4.41 (1995), the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet.App. 55 (1994).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, traumatic
arthritis which has been substantiated by X-ray findings it
rated as degenerative arthritis. Degenerative arthritis is
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1995).
The maximum rating available under 38 C.F.R. § 4.71a,
Diagnostic Code 5260 (1995) for limitation of flexion of the
leg is 30 percent, when flexion is limited to 15 degrees.
When flexion is limited to 30 degrees, a 20 percent rating is
warranted.
When flexion is limited to 45 degrees, a 10 percent rating is
warranted and when it is limited to 60 degrees a zero percent
rating is warranted.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, limitation of
extension of the leg to 5 degrees warrants a zero percent
rating, limitation to 10 degrees warrants a 10 percent
rating, limitation to 20 degrees warrants a 30 percent
rating, and limitation of extension of the leg to 30 degrees
warrants a 40 percent rating.
Ankylosis of the knee at favorable angle in full extension,
or in slight flexion between 0 and 10 degrees warrants a 30
percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256.
Ankylosis of the knee in flexion between 10 and 20 degrees
warrants a 40 percent evaluation. Id.
Other impairment of the knee manifested by recurrent
subluxation or lateral instability, when severe, warrants a
30 percent rating, when moderate a 20 percent rating, and
when slight a 10 percent rating. 38 C.F.R. § 4.71a,
Diagnostic Code 5257.
Impairment of the tibia and fibula, manifested by nonunion,
with loose motion, requiring a brace warrants a 40 percent
rating. When there is malunion of the tibia and fibula with
marked knee or ankle disability a 30 percent rating is
warranted. With moderate knee or ankle disability, a 20
percent rating is warranted. With slight knee or ankle
disability 10 percent rating is warranted. 38 C.F.R.
§ 4.71a, Diagnostic Code 5262.
38 C.F.R. § 4.71a, Diagnostic Code 5055 provides that the
minimum rating for residuals of knee replacement is 30
percent knee replacement. A 60 percent evaluation is
warranted for knee replacement with chronic residuals
consisting of severe painful motion or weakness in the
affected extremity. Intermediate degrees of residual
weakness, pain, or limitation of motion should be rated by
analogy to 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, or
5262 and that. 38 C.F.R. § 4.71a, Diagnostic Code 5055.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. Nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20.
In regard to the rating warranted for the veteran’s knee
disability prior to the November 1994 knee replacement, the
Board notes such findings as swelling and enlargement of the
knee, generalized knee pain even at rest, the need to use a
cane, effusion and severe arthritis by X-ray. The Board
concludes that prior to the surgery the knee disorder was
thus shown to be more than 10 percent disabling and that, by
analogy, it more closely approximated the requirements for a
severe knee disability as contemplated for a 30 percent
rating under a code such as Diagnostic Code 5257.
In regard to the rating warranted since the assignment of the
post knee replacement 30 percent rating, an evaluation in
excess of the current thirty percent under Diagnostic Codes
5010, 5055, 5256, 5261, and 5262, requires that there be
chronic right knee replacement residuals consisting of severe
painful motion or weakness; right knee ankylosis; tibia and
fibula impairment; or limitation of extension of the right
leg to 30 degrees. The veteran is currently receiving the
maximum schedular rating provided under 38 C.F.R. § 4.71a,
Diagnostic Codes 5257, 5260.
The recent examination findings demonstrate that the
veteran's right knee disability is currently manifested by
some pain, range of motion from 0 to 80 degrees, a mild limp,
tenderness over the right femoral jointline, and well-healed
scars over the anterior and medial aspects of the knee.
Although the veteran has reported pain in his right knee, it
most often occurs after he has been standing for a long time
or has walked a long distance. At the February 1996 VA
examination, the veteran did not need to use a “prosthesis”
to aid in ambulation and the examiner did not find chronic
painful motion, muscle atrophy, or instability or weakness of
the knee. In fact, the veteran had full extension of the
knee and flexion to 80 degrees. That range of motion, if
evaluated without consideration of any other factors, would
not meet the schedular requirements for a compensable rating.
As the veteran is not shown to have pain on motion of the
knee, instability or weakness, the current 30 percent
evaluation is found to adequately reflect not only the
limitation of motion but also the complaints of pain on
standing for long periods and walking a long distance. 38
C.F.R. § 4.71a, Diagnostic Code 5055. Based upon the
foregoing, the Board finds that an evaluation in excess of 30
percent for the veteran's residuals of right total knee
replacement is not warranted.
The Board emphasizes that the evidence in this case with
respect to this issue is not in relative equipoise, nor does
the disability picture, as discussed above, more nearly
approximate a higher rating. The provisions of 38 U.S.C.A.
§ 5107(b) and 38 C.F.R. §§ 4.3, 4.7 (1995), therefore, are
not for application.
ORDER
A rating of 30 percent for a post surgical right knee
disability with osteoarthritis prior to November 10, 1994, is
granted, subject to regulations controlling the payment of
monetary benefits.
An increased rating for status post right knee surgery with
osteoarthritis and right knee replacement, currently assigned
a 30 percent rating, is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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